Bitter arguments rage within the community that we may term as broadly secular, leftist, even feminist, around the Farooqui judgement – in many ways, this judgement and the case itself, may be to Left politics in India with regard to sexual violence, what “Nandigram” was with regard to the question of land, agriculture and environmental costs of industrialization. That is, the dismantling of an older framework of ethics and politics and the painful emergence of what one hopes will be a new consensus on what constitutes rape, but more importantly, on what the harm of rape and sexual violence is.

The authors of this post have read the judgement and followed the case closely, and that is the basis of our analysis here.

We believe that the judgement and verdict in the Mahmood Farooqui rape case indicates an unmistakeable and important shift in the way in which rape is viewed in a courtroom.

“She was bitter against the accused for committing a sin and taking what was most precious to her i.e her control over her sexuality.”

Judgement in the Mahmood Farooqui rape case

This is a radical break from the dominant discourse on rape. It does not focus on loss of honour or physical hurt as the most deeply felt loss by a rape survivor. It recognises, instead, that “sin” of rape is that it robs a woman of what is most precious to her: control over her own sexuality. In recognising this, the judgement respects the words used by the survivor herself to describe the assault on her. In each of the two mails the rape survivor sent the perpetrator after the rape, she asserted that she used to “own her sexuality” and that the perpetrator’s act of rape took that ownership away from her.

Media discussions often raise the question, “What has changed in the matter of justice in rape cases since December 2012?” This verdict indicates an unmistakeable and important shift in the way in which rape is viewed in a courtroom.

With this conviction, however, a familiar bogey has been resurrected: that of men becoming hapless victims of ‘draconian laws’ for women. Even as lip service is paid to the heinous nature of rape, the conviction of Farooqui has become an occasion to murmur about the need to soften the rape law.

Rape is the worst possible crime that can be committed by any human being. The laws have tightened up, and rightly so, in favour of women. But is there a possibility that while the laws have been made more stringent, has the space for providing a valid defence been reduced? If it has, I think our lawmakers need to do something about it.

Where does this anxiety come from? Is there really a flood of rape convictions that should make us worry about men being victimised by the rape law? Or is it only a particular rape conviction of a man of a certain profile – someone that male opinion makers can identify with – that gives birth to anxieties about the rape law? When such a man is found guilty of rape, is there a tendency to lighten the load of that guilt by suggesting that the rape law is so rigged that no one can be found innocent? After all, if the space for a valid defence is so small that every accused is fated to be found ‘guilty’, then the man specifically found guilty is as good as innocent.

Would such anxieties have been expressed if the story in the newspapers had been about a Call Centre executive unknown to People Like Us, who raped a female acquaintance in this manner?

The same anchor hosted another show in which he suggested that the Farooqui judgement was a miscarriage of justice. The show summarized the judgement in four points in an extremely misleading manner. We will by the end of this piece, have addressed each of these claims and shown them to be false.

In this show, Chaube declared that the judgement had refused to consider the testimony of all defence witnesses on the grounds that they were friends of the accused.

Chaube also claims that the evidence was not diligently scrutinized by the Court.

Chaube and one of the lawyers on the show claimed that the act Farooqui was convicted for is not “strict rape” and seven years is too much for this act.

4. The new rape law, by taking away the judge’s discretion to reduce the sentence below seven years, is unfair to men.

Before flowing helplessly into the narrative of male victimhood and fear-mongering about the rape law that certain media channels are producing in the context of this case, let us go into the information revealed in court, on which the Farooqui judgement is based.

The survivor’s testimony was that on 28 March, she was invited to Mahmood Farooqui’s house to accompany him and others to a wedding. When she got there, Farooqui was drunk. He sent away one friend Ashish Singh from the house and called another – Darrain Shahidi – to be told that the latter was not expected to arrive. When the survivor was left alone with him, he tried to kiss her and made a sexual advance to her. She said ‘no’ more than once. But he pinned her arms down and forced oral sex on her. Overpowered by him, she froze out of fear and thought she could survive only if she did not resist. Eventually the rape ended only when Ashish returned to the house with Farooqui’s brother and rang the doorbell.

‘Sterling’ Evidence

The judgement observed that

the evidence of the prosecutrix is of sterling quality. It is consistent and credible. Her evidence has been corroborated in all material particulars by PW10 (Danish Hussain), PW11 (a woman friend) as well as by independent record comprising of emails, SMS, Whatsapp communications as well as CDRs (Call Detail Records). Her demeanour shows her to be a honest (sic) and truthful witness.

According to the judgement,

She had informed PW10 Danish that things were not right with her in the house of the accused and she needed to urgently speak with him as soon as she exited the house of the accused. As soon as she left and got into the taxi, she called PW10 and narrated him that the accused raped her. She also described the sexual assault to him.

Was Danish the only one she informed? Far from it.

The judgement notes,

She reacted to the incident immediately. She had told PW10 Danish what had happened to her. She wrote a email to the accused on 30.03.2015. She wrote to her academic advisor …. She exchanged Whatsapp with her friend …on 31.03.2015 and 01.04.2015.

She told Farooqui’s wife Anusha in a mail that she lacked the resources in India to process the incident and needed to be with her family in the US to do so. While in the US, she also reported the incident to Columbia University Department of Gender Based Misconduct. She returned to India on a tourist visa only to file the complaint.

Thus, her narrative was consistent throughout – from the very day of the assault, through the weeks that followed immediately after the assault, till the day she testified in court, she maintained that the a drunk Farooqui had forced oral sex on her after she repeatedly said No, and that she froze and did not fight back out of fear and in order to survive, and that this act violated her ownership of her sexuality.

Farooqui’s Own Email of Apology

Perhaps the most clinching evidence supporting the survivor’s testimony is Farooqui’s own apology when confronted with his crime, and his wife’s response to the survivor’s email accusing him of rape.

Two days later, on 30 March 2015, she sent an email to Farooqui about the assault, and he replied ‘My deepest apologies…’

The mail begins:

Mahmood,

I tried calling you, but was unable to get through. I want to talk with you about what happened the other night. I like you a lot. You know that. I consider you a good friend and I respect you, but what happened the other night wasn’t right.

The mail went on to say that Farooqui was drunk, made a sexual suggestion which she refused many times, and that he went too far and became “forceful,” and that she “went along” because she was “afraid that something bad would happen if I didn’t.” She mentions friendship, attraction, concern for Farooqui but says that in spite of all this “it really made me feel bad when this happened. I haven’t known what to say to you since then. I wasn’t sure if I would say anything. In the end I consented but it was because of pressure and your own force physically on me.” Expressing concern for Farooqui’s own well being this first email says, “I am afraid that if you don’t realize that this is unacceptable, you may try this on another woman when you are drunk and she will not be so understanding.” The mail ends by reiterating, “I want the best for you whatever that is but I also need you to know doing what you did the other night is unacceptable. I hope this doesn’t affect our friendship, but am willing to deal with the repercussions if it does.”

To this mail, Farooqui replied: “My deepest apologies…”

What does the judgement say about this evidence?

The accused responding immediately to the first email of the prosecutrix and accepting his guilt, clinches the case of the prosecution.…he has admitted replying so to the first email of the prosecutrix but has justified his reply by saying that he did not read her whole email before replying. The justification is difficult to accept from a professional like the accused who was proficient in English language. Also this justification is difficult to believe considering that at no point of time, the accused had disclosed when exactly he became fully familiar with the contents of the email and despite becoming aware of the same why he did not subsequently refute the same by a subsequent email.

Further, the judgement observes that

The reading of the first 2-3 lines of the email do not in any manner justify the reply given by the accused.

The judgement rejects thesuggestion that this mail was the “product of a disturbed mind.”

On 12 April 2016, the survivor sent another, more bitter email to Farooqui; since he was in rehabilitation, and not accessing mail, his wife Anusha read and responded to the mail. The series of mails exchanged between the survivor and Farooqui’s wife were further clinching evidence of the credibility of the survivor’s testimony.

In the second mail, the survivor said, “You hurt me. I said no. I said no many times. You didn’t listen. You pinned my arms.” She also spoke about the trauma she was undergoing:

In the past two weeks I have blamed myself. I have spent the last two weeks crying, processing. I have thought about death. My mother tried to fly here to get me. My sister has put my nieces on the phone to talk with me so I don’t hurt myself. So I remember them and not this. Not you. …

…I have spent the past two weeks protecting you. Like I did that night. The only thing I know is I didn’t do anything wrong. But that doesn’t matter….I used to own my sexuality. You took that from me. You forced me to do something I did not want to do.

So remember this what you did that night wasn’t one night. What you did that night continues to affect me and my suffering. My pain. It’s on your hands. When I carry this forward in life. It is your sin that I carry forward. It is your sin that I have to overcome…

In Court, Farooqui did not admit to the rape or apologise, he claimed the incident never took place and the survivor’s email was the “product of a disturbed mind.” But even among those of Farooqui’s friends, admirers and sympathizers who believe he did commit the act alleged by the survivor, there are many who ask if he is being made to pay too high a cost. “After all, he apologized, isn’t that enough,” some people are saying. The unspoken question on their minds is: “Why was the survivor not satisfied with the apology; why did she have to file an FIR and get the man jailed for a brief mistake of a couple of minutes?”

If we are asking ourselves this question, we are expecting the survivor to keep protecting Farooqui – as she tried to do in her first email; as she herself said she tried to do for the first two weeks after the rape. Those of us who are only able to see what Farooqui’s ‘slip’ of ‘two minutes’ cost him, should also reflect on what it cost the survivor. Her letter speaks of her anguish, her pain, her suicidal thoughts – we need to remind ourselves that the perpetrator will spend 7 years in jail, but the survivor also, for no fault of hers, got a life sentence of pain and suffering for an act committed by Farooqui.

To the second email, Mahmood’s wife Anusha replied,

I am deeply disturbed by your email. What you have described is an ordeal. I cannot imagine how you have dealt with it so far. Needless to say that I stand with you. If you require any help of any nature including legal, I will assist. This is completely unacceptable behaviour, especially for me since it happened under my roof.

The survivor responded, “I do not have the resources in India to figure out how to begin the healing process, so I am leaving tonight to go back to New York. I need to be around my family and my colleagues. I need to get help and support for this.” In response to a mention of Farooqui’s bi-polar disorder, the survivor added, “sexual assault has nothing to do with bi-polar and everything to do with power. The assertion of power over another human being.”

Anusha replied to this:

I am glad to know that you will be among your friends and family for the moment. I hope that you will be able to overcome this horrible incident. As I said before, his brothers and I will completely support you in whatever you wish to do about it.

I understand how angry you must be and therefore misread my categorical position on such matters. The reason I mentioned Bi-polar is because that is the reason why I don’t have access to Mahmood and therefore I am unable to confront him at present.

The judgement observes,

The scrutiny of the emails sent by the wife of the accused to the prosecutrix shows that at no point of time she has refuted the allegations of rape made by the prosecutrix against the accused. Rather she has expressed her sympathy with the plight of the prosecutrix and advised her to take appropriate action.

The judgement sums up and appreciates the prosecution’s arguments on the wife’s reply:

Strangely, Anusha did not express even an iota of surprise on reading her emails describing how her husband forced oral sex on her. This leads to an inference that she was well aware of the accused’s behaviour particularly in matters related to his sexual conduct….The silence, apology and admission only imply that the accused and Anusha both knew that the accused had committed forced oral sex upon the prosecutrix. Subsequent actions of Anusha Rizvi and the accused upon learning about the registration of FIR as reflected in the CDRs revealed their true colours.

The defence on the other hand argued that Anusha deleted the mails and did not mention the matter to Farooqui till June, because he was in rehab, and subsequently her father passed away.

The judgement weighs the arguments and concludes,

The CDR shows that when the accused was in rehab, there had been daily conversations between Anusha Rizvi and the accused. The explanation given by the accused that he did not have access to the emails since his wife had deleted the emails, does not inspire confidence. It is impossible to believe that Anusha on the one hand had advised the prosecutrix to take action and also showed sympathy while on the other hand she deleted the said emails and had not questioned her husband regarding the same.

“Independent Record” Of Call Detail Records (CDRs) offered by Defence as evidence of “Impossibility” Of Rape Rejected By Court.

In Farooqui’s defence it was argued that the survivor had claimed that the rape took place between the time when the call with Darrain ended (22:09:04 hours) and the time she booked the MERU cab through the app (registered by the server at 22:12:07). Allowing for the time required to complete the booking, there was not enough time for the oral rape described by the survivor.

The judgement rejected this argument, concluding,

I have given a thoughtful consideration to the above submissions. As per the CDR of the accused and the documents the last call with Darrain ended at 22:09:04. The MERU cab registered the cab at 22:12:07. There is a time difference of 3:03 minutes. In the case of the prosecutrix, she is a proficient user of MERU App. For a person like the prosecutrix, it would hardly take 10-20 seconds to book a cab through MERU App…. It can safely be held that the prosecutrix made the call for the MERU cab at 22:11:47 hours. Thus, the incident happened between the time from 22:09:04 to 22:11:47 which is the time period of 2 minutes and 43 seconds…. There is no reason to disbelieve the claim that the said act as described by the prosecutrix on the part of the accused took place within the time frame as discussed by me above.

The idea that rape is a long-drawn-out, dramatic affair involving physical injury is what we are led to believe by popular culture. In reality, even two minutes is a long time – more than enough for a man to pin a woman down, pull down her underwear and force oral sex on her.

Why was the testimony of Ashish Singh rejected as unreliable? Not because he is Mahmood’s close childhood friend (See point # 1 above in the 4 claims made by Chaube in his television programme) but on the following grounds:

The judgement noted:

I fail to understand what had prevented him from giving his mobile phone to the police to prove his veracity as to his coming in the house of the accused prior to the incident to prove the innocence of the accused. It is also to be noted that the said instrument was not sent to the laboratory for its authenticity. He introduced the facts of coming to the house of the accused before 10.00 p.m for the first time when he appeared in the court for evidence.

Ashish Singh had no credible explanation for his delay in giving his ‘evidence’ and his phone to the police as soon as the FIR against Farooqui was lodged. His unexplained delay counted against him and raised doubts about the authenticity of his evidence.

Nevertheless, the judgement closely examined the evidence offered by him and found that even if the SMS to his wife and cell-tower location were true, it did not establish his presence in the house at the time of the rape.

What did Ashish Singh claim? That he had returned to Farooqui’s home by 22.02 pm – before the alleged time of the rape, to show that Farooqui and the complainant were not alone at the time. During his testimony he “produced his mobile phone and displayed the message which he had sent to his wife – Back to Mahmood’s place with Roomi, will take sometime”. This message records showed the time as 10:02 p.m. The mobile tower locations of Ashish and Roomi were also shown to be ‘12, Sukhdev Vihar’ at 22:02:47 and 22:03:41 hours respectively.

The judgement noted,

The testimony of the DW4 Nodal Officer of the service provider reveals that the tower location does not mean the exact location of the mobile phone. …If a person is standing even at the ground floor of the house, the location of his mobile would be at the same tower location…. In the case of Sushil @ Jalebi (supra), it was held that thecell tower location provided in a CDR is not an affirmative evidence and is in fact an extremely weak and inconclusive piece of evidence.

Moreover, the judgement questioned the meaning attributed by the defence to the SMS content:

The words used by Ashish Singh “Back to Mahmood’s place with Roomi, will take sometime” in the SMS sent to his wife at 10:02 p.m does not imply that he had reached the house of the accused or he was inside the accused’s house. It cannot be conclusively held that PW12 Ashish Singh was in the house of the accused at the time of the alleged call.

No Motive Shown For a False Complaint of Rape

What about the survivor’s delay in lodging the FIR? The judgement appreciates the tortuous process that a woman raped by a man she has trusted and admired undergoes before she takes the decision to lodge a complaint. It finds it entirely credible that the survivor should have felt the need to go home to her family for support before taking the step of pursuing a criminal complaint of rape in a foreign country.

What is also notable in the survivor’s own testimony is that her efforts to extend her Fullbright research visa failed because of Delhi University’s delay in providing relevant papers. She eventually came on a month’s tourist visa to file the complaint. Courts in Delhi were on vacation, and most lawyers were unavailable. And some of the lawyers she contacted refused the case because they knew the accused. Further, “when she spoke to American Embassy, they specifically told her that they are unable to help her as it is a private matter.”

A commentator has asked if the victim’s “clout” played a part in the conviction – on the contrary, far from having any “clout”, she was extremely isolated, vulnerable, and having been raped by a trusted person, was unsure of who else she could fully trust.

The judgement also notes that the defence failed to show any credible motive for the survivor to falsely accuse Farooqui. It was argued that the survivor “was trying to get close to” Farooqui who “generally avoided meeting her one to one. May be that upset her,”and that “the email she wrote on 30.03.2015 was a product of a disturbed mind.”

On this, the judgement concluded:

I do not find force in this contention.

The prosecutrix had come to India to do research. The research was of immense importance for her. She had even turned down the invitation of the accused to go to Gorakhpur since she had to meet her academic advisor in Jaipur in connection with her research work…. She never attempted to be close with the accused. …Her one to one meeting was only when they met at the Archive Library, Teen Murti for the first time. Their last one to one meeting resulted in this incident…. Her testimony shows that she wanted to ignore the incident but she could not, since she knew that what the accused did to her was wrong.

The judgement does not accept that the first email was a “product of a disturbed mind”. It points out that the first email itself the survivor had

expressed anguish over the forcible action of the accused. She has stated that he asked her if he could suck her and despite her refusing he did so forcibly. She submitted to him because of the pressure exerted by him; his physical force; and she did not want things to go bad. What he did was unacceptable…. In her subsequent email sent on 12.04.2015…the prosecutrix has evidently not got over the trauma of the incident and has vented out her bitterness more openly. … She was bitter against the accused for committing a sin and taking what was most precious to her i.e her control over her sexuality.

Attempt to Influence the Victim

It emerged from the testimony of Danish Hussain and from sms and call records that on the night of 19-20 June 2015, after FIR was registered on 19th June, the wife of the accused and his friend Darrain Shahidi attempted to influence the survivor through Danish Hussain, asking her not to incriminate the accused in her 164 CrPC statement to be recorded before a magistrate on the 20th June. SMS records showed that on the intervening night of the 19-20 June the wife of the accused Anusha Rizvi sent two SMS to Danish; one, on 20.6.2015 at 1:44 a.m, said “need to speak urgently. Very urgent” and another at 3:30 a.m said “Dan whatever we need to do will need to be done now. Thanks.” Danish testified that he had been sleeping and saw the messages (one from Anusha’s and another from Darrain’s number) and called Darrain back. Danish testified that Darrain “handed over the phone to Anusha where they asked me if I can get in touch with the prosecutrix and intervene so that she does not press charges.” He testified that he did then “call the complainant on which the complainant became very angry and said after the trauma she has gone through, she would not withdraw her complaint. She disconnected the phone and I remember later that she called me back and reiterated the same which I conveyed to the wife of the accused and the accused the next morning.”

The judgement said

I attribute credence to the testimony of PW10 Danish since he had no axe to grind in ensuring the conviction of the accused. In fact admittedly he was first the friend of the accused and was also his corroborator (sic) on the ancient form of art of story telling since 2005. He was the friend of the accused before he became an acquaintance of the prosecutrix. Since he was the common link who introduced the prosecutrix to the accused, it was natural for the prosecutrix to first turn to him to complain about the person known to them in common…. It is true that PW10 had acknowledged the performance of the accused on 04.04.2015 and had met him in Mumbai on 14.06.2015 and the prosecutrix had spoken to him on 11.06.2015 about a criminal lawyer but it is to be noted that PW10 had a long association with the accused. He had introduced the prosecutrix with the accused. In these circumstances, the possibility of his not wanting to become party to the incident cannot be ruled out. He neither favoured the prosecutrix nor the accused before he was called in the police station and enquired about the incident… There is nothing to indicate that PW10 had any animus against the accused rather his testimony shows that he had admired his shows and met him number of times even after the incident. His testimony shows that what the prosecutrix told him on Whatsapp, phone calls and emails, he stated in his testimony.

Clearly Point # 2 of the four charges made by Chaube’s programme, that the evidence was not diligently scrutinized by the Court, is not sustainable in the face of this detailed judgement.

Let us turn now to Point # 3 of the charges made by Chaube – that this was not “strict rape”.

Real and Not-so-Real Rape?

Would anybody ever say that rape is acceptable? From the most complacent patriarch to the angriest feminist, all will declare rape to be a terrible crime. But the apparent consensus is mythical, for the reasons behind arriving at this opinion are diametrically opposed. From the first perspective, rape is evil because it is a crime against the honour of the family, while feminists denounce rape because it is a crime against the autonomy and bodily integrity of a woman. Such a patriarchal understanding of rape is exactly what leads to the remedy sometimes proposed by the courts themselves, of getting the rapist to marry the woman he raped. The marriage is meant to restore social order. Once the rapist is the woman’s husband, the act of sex is retrospectively legitimized.

One of the panelists on Chaube’s show used the term ‘non-penetrative’ sex and suggests that this is not ‘strict rape’. Before the new law was enacted, forcing one’s tongue or finger into a woman’s body was a minor, bailable offence. The notion that ‘strict rape’ or ‘penetration’ can be said to have happened only with peno-vaginal penetration is a patriarchal one, based on preserving the body of the woman for patrilineal succession. Such an understanding sees the harm of rape as lying in the potential for (illegitimate) pregnancy, and the subversion of patriliny.

How else to explain, as feminist scholars and legal activists such as Flavia Agnes have long pointed out, that in any other case of physical assault, use of a weapon would be “aggravated assault” while in rape, penetrating a woman with rods, sticks and the like, as opposed to a penis, were seen (in the previous law) as less culpable offences? From this point of view, the penis is the only threat to patriliny, not any other part of the body or any other object.

Thus, when contemporary commentators see forced oral sex as somehow a smaller crime than “real” rape, they contribute, wittingly or unwittingly, to this patriarchal understanding of the harm of rape.

Over the decades from the Open Letter on the infamous Mathura judgement by the Supreme Court (1979), innumerable draft legislations on sexual assault have been prepared by different sections of the women’s movement, none of which were taken seriously by the legislature. These drafts, arising from intense discussion within the movement, tried to redress this patriarchal aspect of the law on rape that recognized only penile penetration of the vagina as rape, while other forms of penetration came under ‘outraging a woman’s modesty’, a considerably lesser crime. (In one case of a three year old being penetrated by a finger, judges debated whether a small child could be held to have modesty at all, so how could the question of “outraging it” arise.)

Thus it was a long standing demand of the feminist movement in India, and several Law Commission reports endorsed the demand that “it is necessary to include under the new definition not only penile penetration but also penetration by any other part of the body…” [172nd Law Commission Report of 2002]. The JS Verma Committee report too, had expanded the crime of rape to include any non-consensual penetration of a sexual nature.

The laws in many countries of the world including the UK, US and Canada recognize penetration by any body part as rape/sexual assault. The Sexual Offences Act of UK 2003, sentences a person to a maximum sentence of imprisonment for life for “Assault by Penetration – penetration of the vagina or anus with a part of another person’s body.” For a similar offence, the Criminal Code of Canada hands out a maximum punishment for a term of 10 years; so does South Africa.There are laws in parts of the world that treat “sexual assault” in varying degrees as crimes. But the distinction made even in such laws is about the amount of coercion used, the extent of physical injury inflicted, and the age and incapacitation of the victim. The sentencing for each degree varies according to the severity of the assault, not as between use of penis versus use of tongue and fingers. And all of them have a minimum sentencing structure.

The Indian rape law has changed, and rightly so, because rape is any violation of a woman’s bodily integrity – not just forced peno-vaginal penetration. The new rape law expanded the definition of rape, including oral penetration, penetration by any part of the body or by an object, as rape.

The masculinist mythology around oral sex is that is humbling for the performer. Thus when an enlightened, progressive man performs it on a woman, when he “goes down” on her, it is not only a self-deprecating act for the man, but necessarily pleasurable for the woman. We may remember that similar claims swirled around the Tejpal case as well. At that time, Palash Krishna Mehrotra had asked

if a man offers to ‘go down’ on a woman – is he offering a submissive sexual favour or demanding one?…The bedroom has been criminalised.

(‘Men under a state of seige’ India Today December 1, 2013)

In this way, Mehrotra states with extreme clarity two main tenets of the perverse worldview of the entitled male. One – I will choose where to have sex, and wherever I have sex is my bedroom. If that space be a public elevator, or my drawing room in which the woman is my guest, so be it.

Two – It is my prerogative to offer a sexual favour or ask for one, to offer to be submissive or to be dominant. It is immaterial what the woman thinks of it, whether I repulse her, frighten her, or leave her stone cold with boredom.

This is the framework within which most sexual violence and sexual harassment by acquaintances takes place, a heterosexual male framework which dissolves all distinctions between sex, desire and violence.

It bears repeating that the point is consent. Sexual acts of any kind, whether a kiss, fondling of body parts, or placing of the mouth on any part of the body – consent is key. If it is done without the consent of the second party, it is sexual assault/rape.

Chaube displays his irresponsible lack of homework on the very legal basis of rape laws when he demands “How do you distinguish between consensual sex and non-consensual sex?” and “What happens if a woman consents and changes her mind later?” Before discussing it airily on television, perhaps anchors should at least read a few rape judgements and acquaint themselves with the way in which courts approach the issue. The law clearly establishes that

“Consent means an unequivocal voluntary agreement when the women by words, gestures or any form of verbal or no-verbal communication, communicates willingness to participate in the specific sexual act.”

The Farooqui judgement itself reiterates what is a long-established norm in rape cases:

“It is well settled law that in a case of rape, the sole testimony of the victim is sufficient to establish the guilt of the accused and no corroboration is required….that if direct evidence is satisfactory and reliable, the same cannot be rejected on hypothetical scientific evidence.”

This principle was well-established well before the 2013 amendment. How is reliability of the victim’s direct testimony established in a rape case? Chaube would have done well to read the Farooqui judgement itself first, for answers to his questions.

The judgement not only found the victim’s testimony to be “consistent and credible,” it also found her evidence “corroborated in all material particulars” by two other witnesses “as well as by independent record comprising of emails, SMS, Whatsapp communications as well as CDRs (Call Detail Records).” The judgement quotes previous judgements (that predate the new rape law) to establish that

“If the victim of rape states on oath that she was forcibly subjected to sexual intercourse, her statement will normally be accepted, even if it is uncorroborated, unless the material on record requires drawing of an inference that there was consent or that the entire incident was improbable or imaginary.”

It further shows judicial precedents to establish that “abstract speculation” and “fanciful doubts” cannot be used to undermine the otherwise credible and consistent narrative of a rape victim. Asking ‘What if’ questions of the kind Chaube voiced, amounts to precisely those kind of fanciful, abstract doubts, far removed from the actual facts of the case.

Quite apart from established legal precedent, Chaube and his ilk might benefit from this simple video that explains consent in terms of someone being offered a cup of tea. It is remarkable, the mythologies and self-delusions of entitled men and a largely patriarchal and sexist society that insist on seeing sexual contact as somehow mystified into a realm quite removed from all other forms of human interaction. The moment consent to sex is equated with consent to having a cup of tea, these delusions are exposed. The only response then would be a plaintive “but consent to sex is different.”

Here’s the radical suggestion – try pretending it is not:

Deflecting from the actual case and raising red herrings

Some commentators have equated Farooqui to Julian Assange. At one level this analogy is correct, though not in the sense they mean. In the case of Assange, his supporters allege that his sexual encounters with the two complainants was consensual, taking the form of sexual harassment complaints only afterwards, under pressure from powerful governments affected by Wikileaks disclosures. However, in the Swedish warrant for his arrest, both of his accusers conceded that they had separate consensual sexual encounters with Assange, which became non-consensual specifically after he refused to use a condom or replace a broken one. This constitutes sexual violence under Swedish law. That is, consent may be given for specific levels and types of sexual activity, not once and for all, for anything and everything.

Thus, Farooqui as well as Assange, have committed a sexual crime that their supporters deem not to be a crime at all.

At another level, the analogy seeks to place Farooqui on the same plane as a social crusader being persecuted for his zeal in speaking truth to power. This is clearly misplaced and deliberately misleading.

In Assange’s case, without giving him a clean chit in advance, the question that some feminists have in fact raised, is whether the international hunt for him and the punishment he is currently undergoing, are commensurate with the possible crime. Questioning the ‘unusual zeal’ in pursuing the rape allegations against Assange, the spokesperson for Women Against Rape pointed out that in Sweden, up to 90% of reported rapes do not in fact, get to court. Defending both rape victims’ right to anonymity and defendants’ right to be presumed innocent until proven guilty, the statement criticizes the fact that Assange, with no previous criminal convictions, was refused bail in England, when in other cases, bail following rape allegations is routine.

Clearly, these circumstances are far removed from the case of Farooqui.

Taking away of judicial discretion in sentencing

The fourth point made by Chaube and a panelist on the CNN IBN show referred to above, was about the taking away of judicial discretion to reduce the sentence in rape cases. This supposedly makes the law unfair to men, imposing a minimum 7-year sentence without regard to context. Why did the 2013 criminal law amendment take away judicial discretion in rape sentencing and fix a minimum of seven years? One of the reasons was the rampant misuse of the discretion provision, whereby judges were reducing sentences based on women’s past sexual conduct. That is, a man convicted of rape would get a lesser sentence if the rape victim was a married woman or a sexually active woman (i.e not a virgin); or if the rape victim got married (to someone else) during the trial. Not to mention judges themselves advising marriage to the rapist instead of following through with conviction.

Thus discretion in rape sentencing tended to be influenced by the patriarchal understanding that rape was primarily an offence against a woman’s chastity, virginity and marriageability. Mrinal Satish discusses his research on the subject of patriarchal stereotypes that affected rape sentencing:

…judges have the absolute discretion to determine the sentence for each individual offender. Unlike some other countries, such as the United States and England, India does not have sentencing guidelines, which provide rules and principles for judges to follow while sentencing. These guidelines generally list out factors that the court should (and should not) consider while sentencing. The absence of such guidelines in India is one of the reasons for the rampant disparity that exists in sentencing across crimes, including rape. In fact, the Supreme Court has itself repeatedly acknowledged the existence of disparity in its death penalty practice. It has observed that sentencing has become “judge-centric,” instead of being based on principles. The same critique applies equally to rape sentencing as well.

It was to correct these blatant patriarchal biases and misuse of judicial discretion that the minimum sentencing of seven years has been introduced. How does a single judgement in the Farooqui case give Chaube or anyone else reason to declare that the lack of judicial discretion is being misused? Surely we would need a longer period to observe and rigorously study the new law in action in order to have a context and a basis on which to argue for restoration of judicial discretion?

When the new law has barely begun to be used, why be haunted by the bogey of the law’s abuse? When there is no data yet on the basis of which to theorise that the law is unfair to men, why the rush to suggest that the law needs to be softened or amended? One is forced to wonder if the suggestions that the rape law needs amending are being made only when it begins to appear that the law might not only apply to nameless men, mostly poor. The uneasiness has emerged when the law comes too close home, when certain cases and convictions indicate that the law might also apply to respectable, high-profile, well-known men, men with a reputation, respect and power to lose.

Is it really true that the “space for a valid defence” has been reduced in the new rape law? Is it really true, as is being suggested by some, that a crazy or motivated allegation by a woman is enough to convict a man of rape? Is it really true that defence witnesses are being summarily disbelieved simply because they are friends of the accused?

One has to read the Farooqui judgement carefully, to appreciate how rigorously an allegation of rape is scrutinised before arriving at a conviction. But above all, it is important to read the judgement to rid ourselves of our stubborn notions of what kinds of rape we are willing to take seriously, and what kinds of rape we are willing to excuse and condone.

The Freeze Response

Finally, we need to address a charge being bandied about in the social media that the “Nirbhaya analogy” was deliberately invoked by the complainant and her lawyer to create clouds of confusion regarding the relatively minor incident in their opinion, that did in fact take place. First of all, neither the Prosecution nor the complainant’s counsel repeatedly “conjured” the Nirbhaya case or used it “as a powerful rhetorical move” (as charged by some commentators) through the trial. Nirbhaya has also not been repeatedly referred to in the victim’s evidence. The complainant stated once in her complaint that when she was pinned down by Farooqui, she remembered that one of the rapists in the December 16th gang rape case had said that if she had not struggled, she may not have been killed. Flavia Agnes has written about what the rapist said in that instance, saying that perhaps this is a good lesson to learn – develop survival instincts, survive the rape somehow and live to tell the tale (“Inside the minds of rapists” Asian Age, March 08, 2015).

Did the complainant believe Farooqui would actually kill her? How absurd, right? Because how impossible is that – that someone we know, with whom we dine or could potentially dine, could kill somebody? But the point is not whether at that moment of terrifying loss of mobility, agency and control of her movements, she thought “I could be killed” but that she thought “Much worse harm can come to me if I resist.”

Why does a rape survivor fail to fight? Is it incredible that a rape survivor might “freeze” out of fear for her survival as physically and mentally whole person? In fact, “freezing” is an extremely common response among those experience an assault, especially a sexual assault by a trusted person.

This paralysis has to do with the mythical power attributed to sexual violence in cultures globally, and is not restricted to women alone. A counsellor in Britain heading Survivors, the principal counselling service for male rape victims, says that even men, even “big guys” “freeze” when they are victims of a sexual attack. They talk of being literally unable to move, unable to offer any resistance, when in a case of being mugged or beaten, they would be able to fight back. (Mick Brown “Male Rape is Not Even Recognized as a Crime” The Pioneer, December 16 1992.)

The Farooqui judgement states with admirable clarity:

“The essence of rape is absence of consent. Consent means an intelligent, positive concurrence of the woman.”

A woman whose arms are pinned down and who does not fight back out of fear cannot be said to have consented.

A question commonly asked about the survivor’s conduct is – Why, if she was scared, did she not run screaming from the house?

The answer: because any rape survivor takes time to process an assault, battling shock and bewilderment, especially when the perpetrator is someone she has known and trusted. Even in her emails the survivor displays concern for the consequences of her speaking up: the impact on their friendship and on the well being of Farooqui. It is only when she finally stops trying to protect him from the consequences of his own act of sexual violence, and finds that she cannot overcome the trauma, that she decides to go in for the ordeal of filing an FIR in a foreign country and going through with the legal process.

(And this is the reason her lawyer brought up the issue of her being a foreign national. This point has been attacked by many as being somehow “nationalist” and obscuring the fact that poor Indian women have a much harder time getting access to courts. But the complainant’s lawyer’s argument was that she was a stranger in India, and once she made the complaint, she became entirely isolated among the people who formed her social circuit. In a climate where rape is trivialized and condoned, the rape complainant finds herself in a very hostile space. It is easy to forget that for justice in a rape case, support for the survivor is key. The survivor cannot face the ordeal of the case unless she has some people in her corner. )

The judgement notes very clearly that immediately after the assault the survivor made several calls for a cab, cancelling bookings when the cab did not turn up and trying another cab service, and moreover telling Danish on WhatsApp that she was upset and needed to leave the house and talk to him as soon as she got in a cab.

This exemplary judgement reminds us that the search for the truth must examine the “totality of the evidence” and not focus on some minor inconsistencies in the survivor’s testimony. To quote the judgement:

A victim of such an incident cannot be expected to possess photographic memory and to state the facts in a parrot like manner. …Minute details of the incidents with the passage of time go out of memory. It is not as if a video tape is replayed on the mental screen.

This point is useful to remember even as we recall other rape cases in which minor inconsistencies in the survivor’s statement have been dragged into articles and social conversations in order to discredit the complainant.

The Farooqui judgement vindicated a rape survivor after a rigorous examination of evidence. It would be a travesty to treat this judgement – without reading it – as an opportunity to demonise the rape law. Instead, the judgement is a small sign of a positive shift in the courtrooms – a shift towards recognising rape as a violation of a woman’s bodily integrity. The judgement will embolden rape survivors to break the silence about sexual violence, and seek justice.

And last but not least, the judgement notwithstanding, the survivor will continue to have to suffer the consequences of the rape. The survivor has been vindicated, that does not mean she has ‘won’ (‘won’ being the word we use to describe winning a race, winning an award, winning a war).

Let us recall in this context the powerful letter of the Stanford rape survivor to the perpetrator:

you said, I want to show people that one night of drinking can ruin a life…A life, one life, yours, you forgot about mine. Let me rephrase for you, I want to show people that one night of drinking can ruin two lives. You and me. You are the cause, I am the effect…Your damage was concrete; stripped of titles, degrees, enrollment. My damage was internal, unseen, I carry it with me. You took away my worth, my privacy, my energy, my time, my safety, my intimacy, my confidence, my own voice, until today. … what he did to me doesn’t expire, doesn’t just go away after a set number of years. It stays with me, it’s part of my identity, it has forever changed the way I carry myself, the way I live the rest of my life.

Debate on particular laws and on the legal strategy as such

Quickly in conclusion – yes, of course debate on legal strategies and laws to deal with sexual assault and harassment has to be on-going, including asking the question – why is rape and sexual assault in India dealt with by successive amendments to a 155 year old colonial law?

Instead of continuously tinkering with the existing outdated, two century old criminal law on rape, we need freshly drafted legislation reflecting widest possible consultations among the people, especially different sections of movements – queer feminists, Dalit activists, child sexual abuse activists. Such consultations could result in a law that better reflects contemporary understandings on what constitutes sexual violence, and what is the harm it does.

But this moment is the time to recognize a major advance in the understanding of sexual violence – the radical shift that has been effected by the Farooqui judgement on what constitutes the harm of rape. Not honour, not shame, but – sexual contact of any kind, without the consent of the second party, is violative because it takes away the person’s control over her body, her sexual identity and sexual choice. Period.

Comment (1)

Brilliantly argued article with logic and evidential arguement. The patriarchal mindset of judges is clearly evident. More and more women should argue such judgement . More women judges need to be appointed for such cases.